Madras High Court
The Chief General Manager State Bank Of ... vs The Presiding Officer, Central ... on 24 November, 1986
Equivalent citations: (1987)ILLJ66MAD, (1991)IIMLJ93
ORDER
1. In this Writ Petition, we have to deal with the claim of the workmen of the State Bank of India, hereinafter referred to as the Bank, for customary bonus. I find that the workmen have been referred to as 'awardstaff', but in order to avoid any ambiguity, I would prefer to refer to such claimants for customary bonus as 'workmen' in this order. Their agitation for such bonus was the subject matter of a reference under the Industrial Disputes Act, 1947, to the first-respondent in I.D. No. 32 of 1982. The questions referred for adjudication to the first respondent ran as follows :
"(a) Whether the action of the Management of State Bank of India in stopping the payment of one month's basic wages as drawn on 30th June, and 31st December, respectively by way of bonus annually with effect from the second half of 1975 is justified. If not to what relief the workmen are entitled to (award staff) ?
(b) Are the members of the award staff of State Bank of India entitled to receive annual bonus of two months basic wages (as drawn on 30th June, and 31st December, respectively) irrespective of the salary as a customary bonus ? If so to what relief the workmen concerned are entitled ?"
The-first respondent rendered his award on 10th December, 1983 and he countenanced the claim of the workmen for customary bonus and the operative portion of the award runs as follows :
"In the result, an award is passed directing the Management to continue to pay at least two months' substantive pay as customary bonus or pay of its kind biannually at every half year ended 30th June, and 31st December from 2nd half of 1975 onwards to Award Staff less what is alleged to be paid as ex-gratia payment, if true, with costs of Rs. 500/- to the first petitioner Union. The other two Unions will bear their own costs."
The award of the first respondent is being put in issue in this Writ Petition.
2. The principles relating to customary bonus having been settled by pronouncements of the Highest Court in the Land, there is little room for raising a controversy over the principles to be applied. The only question germane for consideration in this Writ Petition is as to whether the facts of the case do support the claim of the workmen for customary bonus, as countenanced by the first respondent. There are certain ingredients which require satisfaction as per the principles countenanced by Judicial pronouncements to countenance a claim for customary bonus. One is the payment should have been over an unbroken series of years. Secondly, the payment should have been for a sufficiently long period, though the length of the period may depend upon the circumstances of each case; the period may normally have to be longer to justify an inference of customary bonus. Thirdly, payment must have been at a uniform rate throughout to justify an inference that the payment at such and such rate had become customary in the particular concern. Fourthly, the payment must have been made not out of bounty. Payment during years of loss is not a since qua non to spell out customary bonus and that need not be demonstrated, because the particular concern could have had the fortune of continuous period of profits and not of loss.
3. Coming to the facts of the present case, from 1944 till 1963 that there were disbursements of bonus at the rate of one month's basic pay at every half year is not in dispute. It must be noted that until 1955, when the Bank was constituted under the State Bank of India Act, 1955 (Act 23 of 1955), the previous body was Imperial Bank of India, which again stood constituted under the Imperial Bank of India Act, 1920. Records have not been exposed, but the position with regard to disbursements as aforesaid stands admitted. These disbursements satisfied all the tests recapitulated above, with regard to a claim for customary bonus. The disbursements were unbroken; they were for a sufficiently long period; it has not been demonstrated that they were paid out of bounty; and they were at a uniform rate. Hence, upto 1963, the basis for the present claim seems to be well established. After 1963 also, there were disbursements of bonus upto the first half of 1975. But, from 1963 onwards, controversy gets ripened because payments made, were over and above the two months' basic pay. On 30th November, 1965, the workmen projected a claim for additional bonus for the past years 1956 to 1963. The letter and the memorandum enclosed therewith have been marked as Ex. M. 14. In this memorandum the workmen have put forth a grievance with regard to the adequacy of disbursements of bonus during the period in question, on the basis of one months' basic pay for each half year, the one ended with 30th June, and the other ended with 31st December. However, we do not get any positive indication as to whether the claim for additional bonus for the past years 1956 to 1963 was settled in any effective manner, though there is an attempt on the part of Mr. B. R. Dolia, learned counsel for the workmen, to say that such claim were, in fact, countenanced. He is more on implications to be drawn from the records rather than any direct document evidencing such disbursements of additional bonus. It must be straightway pointed out that the workmen were paid additional bonus over and above the two months' basic pay, is neither relevant nor helpful to the present claim of the workmen. On the other hand, the management of the Bank is hastening to build up a counter-active theory, that uniformity in rate stood lost during the period, and that must dissuade the Court from countenancing the present claim of the workmen for customary bonus.
4. There are resolutions of the Executive Committee of the Bank covering the period 1963 to 1966; and 1970 to 1972. They have been marked as Exs. M.1 to M.6. The resolution for the year 1963 Ex. M. 1 does not by itself throw any light as to what exactly was the disbursement over and above the two months' basic pay. Ex. M. 2 relates to the year 1964. This resolution refers to disbursements of bonus for the accounting year 1964 to all the members of Staff in India at the rate of one month's substantive pay for each half year ended with 30th June and 31st December, 1964 and further it says that all the employees of the Bank (Award and non-Award Staff) in India who are not otherwise excluded from the provisions of the Payment of Bonus Ordinance, 1964 or are not disqualified thereunder, be granted bonus at 10 per cent. of the salary or wage for the accounting year ended 31st December, 1964 and the disbursement already made at the rate of one month's substantive pay for each half year be adjusted against the amount of bonus payable at the rate of 10 per cent. With regard to excess payments, the matter of recovery was left open. This indicates an inclination on the part of the management of the Bank not to disturb the formula of disbursement of one month's substantive pay for each half year. The disbursements at the above formula was ordained to be adjusted against amounts of bonus payable at the rate of 10 per cent. and only in case of excess payments the question of recovery was relegated to future decision.
5. The resolution for the year 1965 could be gathered from Ex. M. 3. It was resolved that employees of the Bank of India (Award and non-Award Staff), who are not otherwise excluded from the provisions of the Payment of Bonus Act, 1965, hereinafter referred to as the Act, or are not disqualified thereunder, be granted bonus at 8 per cent. of the salary or wage, as defined in the Act, drawn by them, for the accounting year ended with 31st December, 1965. In so far as the award-staff of the Bank in India are concerned, in addition to the bonus at the rate of 8 per cent., an ad hoc payment representing the difference between the aggregate of one month's substantive pay for each of the half years ended with 30th June and 31st December, 1965 and the amount payable at 8 per cent. of the salary or wage, as defined in the Act, was declared payable provisionally. Here again, we find that the formula of one month's substantive pay for each of the half years was kept alive so far as the workmen are concerned and further an ad hoc payment representing the difference, as stated above, was declared to be payable provisionally. Obviously, it was envisaged that bonus at 8 per cent. of the salary or wage, as defined in the Act, would exceed the aggregate of one month's substantive pay for each of the half years.
6. Coming to the year 1966 and 1967, on 14th September, 1966, as per Ex. M. 8, as settlement between the Bank and its workmen was arrived at. I feel obliged to extract the terms of settlement as follows :
"Terms of Settlement :
1. (i) It has been agreed that the payment already made by the Bank, in respect of the accounting years 1964 and 1965, to its workmen staff at the rate of one month's substantive pay drawn by them as at the end of the half years ended on 30th June and 31st December (which in the aggregate is higher than the bonus admissible to them in respect of either of the years Under the Payment of Bonus Act, 1965) shall stand and is accepted by the Federation on behalf of the workmen in full and final settlement of all claims for bonus for those years.
(ii) In respect of the Federation's other claims for bonus it has been agreed that the Bank shall pay -
(a) In respect of the accounting years 1966 onwards bonus at such rate is payable in terms of the Payment of Bonus Act 1965 (hereinafter referred to as the 'legal rate') or at its absolute discretion, at such rate as is higher than the legal rate (such higher rate is hereinafter referred to as the 'general bonus').
(b) In respect of the accounting years 1966 and 1967, in addition to the general bonus, (i) and ad hoc amount equivalent to 1 per cent. of 'salary or wage' as defined in the Payment of Bonus Act 1965 or (ii) if the general bonus is lower than the aggregate of one month's substantive pay drawn by them as at the end of the half year ended 30th June and 31st December, an amount equivalent to the difference between the general bonus and the said aggregate, whichever is higher, and (c) in respect of the accounting years 1966 and 1967 a further additional amount equivalent to one and half per cent. (1 1/2%) of salary or wage' as defined in the Payment of Bonus Act 1965. The payment of this additional amount equivalent to one and a half per cent. (1 1/2%) of 'salary or wage' shall be made in respect of the accounting years 1966 and 1967 in the month of October 1966 and 1967 respectively to those of the employees as were eligible for interim bonus in respect of the half year ended June 1966 and June 1967 respectively and 'salary or wage' for this purpose shall be computed with reference to the year ended June 1966 and June 1967 respectively.
(iii) The other terms and conditions such as eligibility disqualifications, etc. regarding the payment of bonus shall be in accordance with the provisions of the Payment of Bonus Act, 1965.
2. The parties agree that the adhoc settlement set out in clause (ii) (b) and (ii)(c) shall not be treated as a precedent or taken as the basis or govern the principle for the determination of bonus for any of the accounting years 1967 and onwards, but this settlement shall be in full and final satisfaction of all claims for bonus upto and inclusive of the accounting year 1967 for which bonus is distributed in the calendar year 1968."
In the short recital of the case, there is a reference to the claim of the Federation that in respect of the accounting years 1964 and onwards, the Bank is bound to pay bonus at such rate so that the total amount to each workman shall not be lower than the aggregate of one month's substantive pay drawn by him as at the end of each half year ended on the 30th June and 31st December. As we could see from the terms of settlement, payments already made, over and above the two months' basic pay for the accounting years 1965 and 1966 were allowed to stand. In respect of accounting years 1966 onwards, an absolute discretion was given to the management of the Bank to pay bonus, called general bonus, higher than the legal rate referable to the rate under the Act. It was stipulated that in respect of accounting years 1966 and 1967 in addition to the general bonus there should be an ad hoc payment equivalent to one per cent. of salary or wage, as defined in that Act or if the general bonus is lower than the aggregate of one month's substantive pay drawn by the workmen as at the end of the half year ended with 30th June and 31st December, an amount equivalent to the difference between the general bonus and the said aggregate, whichever is higher, was payable. This stipulation clearly indicates that there was no intention to disturb and on the other hand the intention was to maintain the formula of payment of one month's substantive pay at the end of each half year and only claims for payments over and above that formula were negotiated and settled. The statement that the ad hoc payments shall not be treated as a precedent or taken as a basis or govern the basis for determination of the bonus for any of the accounting years 1967 onwards would not alter the position, because if at all, the statement could have relevance to reiterate and have undisturbed disbursement of only to payments over and above one month's substantive pay at the end of each half year. The settlement Ex. M. 8 also refers to a further additional amount equivalent to one and half per cent. of salary or wage as defined in the Act. By this further additional payment also, the disbursement of one month's basic pay at the end of every half year was not touched or disturbed. For the year 1966, we also have a resolution as per Ex. M. 4. This resolution has not disturbed the terms of settlement, but on the other hand seems to refer to reiterate and implement the same.
7. For the year 1968, we have Ex. M. 9 and it is a notice for bonus for that year. As per Ex. M. 9, the Central Board of the Bank, approved the payment of bonus for the accounting year 1968 to each member of the award-staff at the rate of 7.5 per cent. of the member's salary or wage as defined in the Act, provided that the member is eligible to receive bonus under the Act. If the amount to be paid as bonus under law is lower than the aggregate of one month's substantive pay drawn by the member as at the end of each of the half years ended 30th June and 31st December, 1968, or prorate where the member has not worked for the full year, difference between the two amounts was declared to be paid ad hoc. Here again, we find the formula of one month's substantive pay at the end of each half year was maintained and preserved and undisturbed and there was unambiguous intention to keep alive that formula, and calling the difference ad hoc may not be of any vital significance on the facts and circumstances of the case.
8. With regard to payment of bonus for the year 1969, we have the memorandum by the Managing Director for the Central Board of the Bank as per Ex. M. 10 and it is dated 19th January, 1970. There is a reference to the members of the award staff being allowed, as in the past, to draw bonus for the years 1964, 1965 and 1968 at the rate of one month's substantive pay for each of the half years ended with 30th June and 31st December. There is also reference to the agreement entered into with All India State Bank of India Staff Federation in respect of the accounting years 1966 and 1977, obviously referring to Ex. M. 8 and payment of additional ad hoc amount as set out therein. Further, there is reference that as is the practice, the members of the award staff had been already paid an interim bonus equivalent to one month's substantive pay in respective of the half year ended with 30th June, 1969, subject to adjustment under the provisions of the Act against bonus in respect of the accounting year ended with 31st December, 1969. It is further stated that the bank had been paying bonus to the award staff at the rate of two months' basic pay or at the rate declared by the bank under the payment of Bonus Act, whichever is higher and this was being done with a view not to reduce the rate of bonus that the bank has been paying to them before the application of the Act. These recitals are portent indeed and they reiterate a practice in the past to disburse bonus at the rate of one month's substantive pay for each of the half years ended with 30th June and 31st December and that practice being left undisturbed and only the claims of the workmen over and above that formula were settled for the years in question. For the accounting year ended with 31st December, 1969, the disbursement of bonus was covered by two clauses, namely, sub-clauses (1) and (ii) of Clause 4 of the Memorandum Ex. M. 10 and the said clauses run as follows :
"(i) that each member of the Staff be paid bonus at the rate of 8% of the member's salary or wage as defined in the Payment of Bonus Act 1965 provided such member is not ineligible to receive bonus in terms of the Act;
(ii) that in the case of a member of the Award Staff it the amount to be paid under Clause (i) above is lower than the aggregate amount of one month's substantive pay drawn by him as at the end of the half years ended 30th June and 31st December, 1969 (or pro rate where the member has not worked for the full half-year) the difference between the two amounts will be paid ad hoc;"
Thus there was always the desire and declaration to maintain the disbursement of one month's substantive pay drawn by the workmen as at the end of the half years ended 30th June and 31st December, and even if the aggregate exceeds the payment to be made under the Act, the difference was declared to be ad hoc.
9. The year 1970 is covered by Ex. M. 11, dated 21st January, 1971 and that is a Memorandum by the Managing Director for the Central Board of the Bank. Practically, the disbursements and the declarations are similar to those found in Ex. M. 10 for the year 1970, except for the difference that the rate under the Act was 8 per cent. for the year 1969 and for the year 1970 it was 6 per cent. In addition to Ex. M. 11, we have also Ex. M. 5, the resolution regarding declaration of bonus. We do not find any difference between Ex. M. 5 and Ex. M. 11 on the formulae adopted.
10. For the year 1971, we do not have any document, but it is admitted that the disbursement of one month's basic pay at the end of each half year, as was done in the years past, was left undisturbed.
11. For the year 1972, there was an agreement between the State Bank of India and its workmen as we could see from Ex. M. 12, dated 6th July, 1973. It is better that the short recital of the case and the terms of settlement stand extracted as follows :
"Short recital of the cases :
The State Bank of India (hereinafter called 'the Bank') has made 'on account' payment to its workmen staff towards bonus for the accounting year 1972 of amounts computed at the rate of a month's basic salary as at the end of 30th June, 1972 and another month's basic salary as at the end of 31st December, 1972. The All India State Bank of India Staff Federation being a Federation of the State Bank of India Employee's Association and/or Unions registered under the Indian Trade Union Act and having its Office at 13, Crooked Lane, Calcutta, and representing the workmen staff of the Bank (hereinafter called 'the Federation') has demanded that the workmen staff of the Bank should be paid a minimum bonus of 100 days' basic pay as at the end of 31st December, 1972 for the accounting year 1972. The parties held mutual discussion with a view to arriving at a settlement and have amicably settled as hereinafter appearing.
Terms of Settlement :
1. In respect of the account year 1972, the Bank shall pay to every member of its workmen staff bonus of an amount representing 84 days' average basic pay for the accounting year 1972. The amount of on account payment that has been made shall be deducted herefrom.
2. Where the period of service of an employee during the year 1972 is less than a year, payment of bonus shall be made proportionately.
3. The settlement is on the clear understanding between the parties that the payment of bonus on the basis of 84 days' average basic pay as in clause 1 above shall not be considered as precedent for the future."
As we could see from the extract, there is a reference to the disbursement already made for the accounting year 1972 at the rate of a month's basic salary as at the end of 30th June, 1972 and another month's basic salary as at the end of 31st December, 1972. On agitation by the workmen to get more bonus at the rate of 100 days' basic pay as at the end of 31st December, 1972 for the accounting year 1972, the claim for something more than what got already disbursed seem to have been settled at 84 days' average basic pay for the accounting year 1972 and the amount already paid was directed to be deducted. The disbursement of two months' basic pay was referred to as on account payment and the settlement of bonus at the high rate was also stated to be on the understanding that it shall not be considered as a precedent for the future. Here again, what was settled was the claims of the workmen to get something more than the basic formula of two months' substantive pay. For the accounting year 1972, we also have the resolution Ex. M. 6 reflecting the settlement of higher bonus at 84 days' average basic pay. There is another document annexure 'G' to Ex. W. 6, which is a copy of the affidavit filed before the Supreme Court in W.P. No. 262 of 1979. This annexure 'G' to Ex. W. 6, a memorandum dated 10th July, 1973 by the Deputy Managing Director (Personnel and Service), and the recommendations made by him are referred to, but the said memorandum has not been produced by the Bank.
12. For the accounting year 1973, Ex. M. 13, dated 20th September, 1974 reflects the agreement between the Bank and its workmen with regard to bonus. The preamble and the terms of settlement need extraction as follows :
"Preamble :
The State Bank of India (hereinafter called 'the Bank') and the All India State Bank of India Staff Federation, being a Federation of the State Bank of India Employees Associations and/or Unions registered under the Indian Trade Unions Act and having its office at 13, Crooked Lane, Calcutta and representing the workmen staff of the Bank (hereinafter called 'the Federation') have discussed the rate at which bonus shall be payable by the Bank to its workmen, staff for the accounting year 1973. After discussions, bargaining and negotiations it has been settled that the basis for arriving at the rate of bonus for the year 1973 shall be the same as was adopted in respect of the year 1972, namely, such number of days' basic pay and dearness allowance subject to marginal adjustments. It was further agreed that so worked out, bonus will be payable at 92 days' basic pay. Accordingly, it has been agreed as hereinafter appearing.
Terms of Settlement :
1. In respect of the accounting year 1973, the Bank shall pay to every member of its workmen staff, bonus of an amount representing 92 days' average basic pay for that year subject to a maximum of Rs. 1700/- (Rupees one thousand and seven hundred only). The amount of interim bonus paid for the half year ended 30th June, 1973, and the further on-account payments that have been made later shall be deducted from the amount of bonus computed at the rate now settled.
2. Where the period of service of an employee during the year 1973 is less than a year, the payment of bonus shall be made proportionately.
3. This agreement will not be treated as precedent for the future."
They are in lines similar to Ex. M. 12 for the 10 year 1972, except for the difference that instead of 84 days' basic pay 92 days' basic pay was settled; but the basis for arriving at the bonus for the year 1973 was stated to be the same as was adopted in respect of the year 1972. Even though there is no specific reference to the two months' basic pay, yet the reference to the basis for arriving at the rate of bonus as in the year 1972 seems to suggest that only the demand over and above two months' basic pay was the subject matter of controversy and settlement. There is reference to disbursements made for the half year ended 30th June, 1973 and subsequently, though the ratio is not disclosed. Preceding Ex. M. 13, they seem to have had discussions at the bipartite meeting with the representatives of the State Bank of India Staff Federation on 24th May, 1974. In the summary of discussions, annexed to Ex. M. 18, with regard to bonus this what has been stated :
"Both the parties explained their approach to the problem of deciding the quantum of bonus for the year 1973. The Federation representatives related their demand for 15% of the salary and D.A. to the agreements reached in other comparable public sector undertakings like the Life Insurance Corporation and the Bank of India and felt that even profitwise it should be possible for the Bank to agree to their demand and settle the matter by declaring at least 100 days' basic pay as bonus for the Award Staff. The representatives of the Management explained that the quantum of bonus depended on profits and the distributable surplus for 1973 did not permit acceptance of the Federation's demand; it was only possible to pay the bonus of the basis of 90 days' basic pay. No conclusions were reached and it was decided to examine and discuss the matter further."
Obviously, the demand of the workmen had been for more, and the bargain was transacted only with regard to this enhancement demand. But, the disbursement of two months' basic pay seems to have been kept alive.
13. For the year 1974, we have an extract of the proceedings of the Executive Committee of the Central Board at its meeting held on 28th January, 1976 as per Ex. M. 7 and it reads as follows :
"Submitted a memorandum dated the 20th January, 1976 by the Dy. Managing Director (Personnel and Services) that, for the reasons stated therein, an ex-gratia payment for the accounting year 1974, be disbursed to the eligible members of the staff as indicated in the memorandum.
The memorandum has been circulated to the Directors on the Executive Committee. Resolved : that the recommendation of the Dy. Managing Director (Personnel & Service) be approved."
This document is not at all helpful either way. But, the fact of disbursement of two months' basic pay for the year 1974 is admitted. For reasons best known to them, the management of the bank has not produced the memorandum dated 20th January, 1976 by the Deputy Managing Director (Personnel and Services). For the first half year of 1975, that one month's substantive pay as bonus was disbursed is not in issue.
14. The award of the first-respondent has come to be rendered on the basis of the above factual features. It is true the discussion by the first-respondent has taken note of and met the submissions of the workmen that the payment of bonus of one month's basic pay as drawn on 30th June and 31st December should be sustained, either as custom-based or as an implied term of service or as deferred wages or as contractual bonus. But that will not alter or militate against the ultimate decision rendered by the first respondent. It has been already noticed that from 1944 till 1963, disbursements of bonus were at the uniform rate of one month's basic pay at every half year and the said disbursements did make out a custom based bonus. Even after 1963, until the first half of 1975, there were disbursements of bonus, maintaining and without disturbing the quantum aggregating to two months' basic pay annually. For the period after 1963 and upto the first half of 1975, disbursements of bonus were unbroken; they were for a sufficiently long period and it has not been clinchingly and convincingly demonstrated that they were paid out of bounty. The only snag which the workmen have to face is that there could be a comment that the disbursements were not at a uniform rate. But, as pointed out by the Supreme Court in Vegetable Products Ltd. v. Their Workmen (1965-I-LLJ-468) whether or not payment is shown to have been made at a uniform rate is always a question of fact. When we speak about uniformity, it should necessarily have relevance and reference to the claim of the workmen for disbursement of bonus at one month's basic pay at the end of each half year. If the workmen had been agitating for more and were fortunate enough to get more, that need not straightway be put against the workmen with regard to the basis and formula projected by them to get the bonus at the above rate. An analysis of the documents brings conviction to the mind of the Court that both the workmen and the management of the bank had no intention to reduce the quantum of bonus below the formula of two months' basic pay annually or in other words one month's basic pay at the end of each half year, and only the demand and claims by the workmen for more were the subject matter of negotiations and settlement and these payments in excess of the basic formula of two months' basic pay did not abrogate the custom to get bonus at the above formula. In my view, that will not speak against the theory of a custom getting established for disbursement of bonus at two months' basic pay annually. If the parties intended to maintain payment at the rate 'X', at any cost, without reducing it in any manner, but disbursements over and above the rate 'X' took place because demands therefor were raised, negotiated and settled, the uniformity with regard to rate 'X' could not be stated to have been lost. With regard to the impact of the Act on the question of bonus claimed by the workmen, there is no need to comment over the same, because the statute must, at all costs, govern the rights of parties and there is a provision in the Act itself that if the employee is paid customary bonus, the employer shall be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him to the employee under the Act and the employee shall be entitled to receive only the balance. (Vide Section 17 of the Act). This is on the hypothesis that bonus under the Act may exceed customary bonus. But the rule is well settled that the Act has nothing to do with the payment of customary bonus and has not disturbed and nullified customary bonus, the right to which stands settled as between the parties invoking and satisfying the principles governing therefor.
15. In M/s. Grahams Trading Co. (India) Ltd. v. Their Workers (1959-II-LLJ-393) payments were found uniform, but in a particular year special additional payment was, in fact, made, and the Supreme Court was not prepared to put that special additional payment as militating against the concept of customary or traditional bonus. Here, the demands for enhanced payments seem to have been raised by the workmen either taking note of their entitlement under the Act or otherwise. But, the vein of payment of two months' basic pay as bonus never got snapped and it ran and throbbed throughout, keeping this formula alive. If I view the matter from this angle, I have to sustain the award passed by the first respondent.
16. There is a heavy comment by the learned counsel appearing for the bank that in the majority of the documents evidencing disbursement of bonus, the expressions 'ad hoc'; 'additional ad-hoc' "Provisional" and 'on account' have been consciously used and they will militate against the concept of customary bonus. Equally so, learned counsel for the bank would stress that in number of documents it has been made clear that the disbursements shall not be counted as precedents. The cord of uniformity of two months' basic pay as bonus was kept alive and it was running throughout without any break. The mere user of these expressions in the documents relating to disbursements viewed contextually with the above factum, as rightly contended by the learned counsel for the workmen, has no meaning at all. It may be that the bank was striking a note of caution. But, on that basis it is not possible to obliterate the uniformity over this formula with regard to disbursement during all these years. It is not as if the workmen were obvious to these declarations made by the bank. A staff circular No. 51, dated 28th January, 1966 as per Ex. M. 19 with regard to bonus for the accounting Year 1965 emanated from the bank and there was reference to ad hoc payment. This was the subject matter of due protest by the workmen, as it could be seen from Ex. W. 7, dated 31st January, 1966 and the assertive statements found in Ex. W. 7 run as follows :
"The members of staff including temporary and part-time employees are paid 2 months basic pay as bonus every year, for the last 21 years, irrespective of the profit made by the bank. Hence, such payment has become contractual and implied condition of service of the employees, which may please be noted."
Learned counsel for the bank would also submit that at no point of time earlier the workmen were asserting their claim of customary bonus of two months' basic pay and in this behalf he draws my attention to Sastri Award of the year 1953 Chapter XVII Item No. 5, which reflects that workmen had been projecting different formulae for payment of bonus. Learned counsel also says that even in the memorandum dated 30th November, 1965 as per Ex. M. 14, the workmen never asserted their claim for customary bonus of two months' basic pay. In my view, the failure on the part of the workmen to assert their claim from this angle, will not abrogate the custom to pay bonus on that basis, if in fact such a custom did exist, honoured, accepted and acted upon, which appears to be the position in the present case. The factual features support this conclusion only. The workmen cannot be prevented from asking for more than the customary bonus. They can always ask for betterment and improvement in this behalf. It does not mean that they intended to give up the custom based bonus. The demands for additional bonus and recognition of the same need not necessarily be put against the workmen with regard to their claim for customary bonus. Though it may be stated that the concept of customary bonus is unknown to Nationalised Banks, as observed by the Supreme Court in Upendra Chandra Chakraborty and another v. United Bank of India (1985-II-LLJ-398); but if in fact such a custom stood established in a particular bank, and if that is found to be tenable, I do not find any justification for obliterating it. Even in that pronouncement, the Supreme Court observes.
"Therefore, in larger public interest also, the demand for customary bonus otherwise found to be untenable must be negatived."
(Underlining done by me to bring out the distinction). The reasons expressed by me above oblige me to dismiss the Writ Petition and accordingly, the Writ Petition is dismissed with costs of the second respondent. Counsel-fee Rs. 1,000/- (Rupees One Thousand) only.